A.B. Med. Servs. v Travelers Prop. Cas. Corp.

[*1] A.B. Med. Servs. v Travelers Prop. Cas. Corp. 2004 NY Slip Op 50517(U) Decided on May 25, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 25, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., PATTERSON and GOLIA, JJ.
NO. 2003-1062 K C

A.B. MEDICAL SERVICES PLLC DANIEL KIM'S ACUPUNCTURE P.C. D.A.V. CHIROPRACTIC P.C. a/a/o STEPHANIE LOPEZ, Appellants,

against

TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered on June 6, 2003, as denied their motion for summary judgment.

Order, insofar as appealed from, unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs' motion for summary judgment was supported by the affidavit of Bella Safir, wherein she stated that she is the "practice and billing manager of plaintiff." In the absence of a statement
specifying for which of the plaintiffs Safir is the billing manager, the affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, March 23, 2004 [App Term, 9th &10th Jud Dists]). Accordingly, plaintiffs failed to establish a prima facie entitlement to no-fault benefits (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and their motion for summary judgment was properly denied.

We note that defendant is precluded from asserting the defense of failure to appear for [*2]examinations under oath since the applicable insurance regulation did not contain a provision requiring claimants to submit to same (see King's Med. Supply Inc. v Kemper Auto & Home Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 2d & 11th Jud Dists]).
Decision Date: May 25, 2004